“A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?”
Alan Gura, Partner, Gura & Possessky, PLLC; Lead Counsel, District of Columbia v. Heller; Lead Counsel, McDonald v. Chicago; Georgetown Law Class of 1995
Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School; Author, The Origins of the Privileges or Immunities Clause (Georgetown Law Journal, forthcoming)
David Gans, Program Director, Constitutional Accountability Center; Author, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment
Important to look to original public meaning of the text. Every provision should have a fixed meaning. The Civil War was not fought to allow people to have a passport, visit American embassies, visit treasuries in Washington, and other trivial things listed as rights of national citizenship listed in Slaughterhouse. It was fought for slavery, and to remedy pre-war oppression of free American citizens, both black and white, and denying them all kinds of rights. North won the war, and they got to make the rules. Those rules are 14th amendment.
“No state shall make or enforce…”
What are privileges or immunities? Mean any sort of right protected in a free government. Concept of natural rights. IF you lived in a free society, basic human rights were going to be respected. THe leading source of this understanding is Justice Washington’s opinion in Corfield v. Coryel. These included certain economic and natural rights of citizenships under Article IV Privileges AND Immunities clause.
Abolitionists considered certain rights codified in Bill of Rights as Privileges or Immunities. They also protected certain rights of life and property.
Senator Jacob Howard who sponsored the 14th amendment, quoted Corfield rights, to these massive privileges or immunities, add personal guarantees of First 8 amendments. These are the understandings people had in the public at the time of ratification. Newspapers picked up these stories.
More, after the jump.
Court should not go beyond textual incorporaiton fo the Second Amendment. BRoader meaning conflicts with original understanding of privileges or immunities clause.
Two ways to incorporate Second Amendment:
1. Focus on narrow incorporation, individual rights in Heller are just as important as rights protected by Heller, both should be incorporated into 14th amendment. Correct to incorporate through DPC
2. Alternative approach goes to Privileges or Immunities Clause as guardian of unenumerated rights
Bingham- only incorporate the rights enumerated in the Bill of Rights.
Bingham distinguished between Article IV Privileges or Immunities and 14th Amendment Privileges or Immunities of National Citizenship.
Good reason to hesitate to jump form substantive due process to unenuemrated privileges or immunities. May be attractive to Libertarian Theory. Bingham would not support nationalization of common law rights, and did not want to impede on Federalism. Supreme Court should retain the people’s right to local government.
LOL. Dean mentioned that Barnett was a prosecutor in Chicago, where he would have had to enforce gun control statute that he now wants to be deemed unconstitutional.
Commends Alan Gura. Unprecedented for a single attorney to change an entire Supreme Court jurisprudence.
Concept of incorporating 14th amendments and bill of rights is a modern idea.Correct question is to ask, “What are the Privileges or Immunities of Citizenship”
Includes the P/I article IV refers, and to other rights, not limited to first 8 amendments.
Do not ask technically if you incorporate this into that. E.g., First Amendment, Congress shall make no law.
Textual confusion goes away.
Corfield listed the canonical explanation of pre-existing rights. Discussing historical evidence supporting this term.
These are fundamental rights free people have against all governments, federal or state.
14th amendment gave congress the power to enact the Civil Rights of 1866. The Rights protected by Civil Rights act very similar to Corfield.
Discussing speech of Senator Howard, and public reception.
This is not constitutionalizing the Common Law, and restoring the original meaning of the 14th Amendment would not have that effect.
Text meant to protect fundamental rights of citizens, beyond Bill of Rights. Where is protection for substantive rights? In privileges or immunities clause. McDonald chance ot make Fourteenth Amendment Right.
“Kurt Lash trying to shatter Left/Right Consensus.” LOL
Slaves for years were denied fundamental rights. After Civil War, South did that again. Framers guaranteed full range of substantive fundamental rights, including free slaves.
Corfield represents the Declaration of Independence. “Privileges or Immunities Clause should get same broad sweep as Declaration.”
Gura- Guarantee Clause- states need to respect certain rights. These are rights secured by any free government.
Gura- People attack substantive due process, not contradictory. Better to use the actual text. Some other rights will gain more protection. Some of these rights announced in the due process area would fit in just as easily because in historical context. Some rights should get renewed look, such as the right to livelihood. That was the right in slaughterhouse.
Slaughter-House when announced denied First and Second Amendment part of national citizenship were received as errors, but the South was ecstatic.
Professor Barnett proposed extending the Washington v. Glucksberg framework to Privileges or Immunities. Ilya Shapiro and I propose the same tact in our forthcoming article in Georgetown Journal of Law & Public Policy.
Barnett thinks we may also restore ways of analyzing liberty at state level to determine appropriate police power of the state.
Gans: DeShaney and Castle Rock. Woman of domestic violence has order of protection and the Court does not want to enforce it. If you look at history of Fourteenth Amendment, federal protection when states turn blind eyes. “Right of Protection” at core of text and history approach.
Is everything found fundamental under Due Process fundamental under P/I
Right to choose P/I?
Barnett: Once thought All substantive rights would be in P/I, and procedural rights in Due Process Clause. In some sense, slightly less difference. This is not correct. At founding, a judge would assess if action was within power of legislature to act within Due Process/Law of the Land. Due process of Law requires some judicial inquiry to determine if there an act is a law. That is a substantive law. This would protect all persons, not just citizens.
Lash: Need to revisit Lochner.
Barnett: Is that an objection? LOL
Lash: Right of happiness. [No, right of pursuit of happiness]. Don’t know about nature of the Rights. Who gets to decide about liberty? Some things at national level. Some not.
Gura: We cannot be outcome determinative. We don’t pick and choose rights.
Are Resident aliens out of luck?
Gura- No. all persons still protected by equal protection. if a state has a requirement to honor rights of citizens, it then needs to extend equal benefits of those protections, whether legal or illegal, subject to strict scrutiny on alienage. Preemption of immigration power. Not an issue. This would benefit immigrants
Ilya Shapiro: Concerns about what happens Post-Slaughterhouse ruling. This is a potential pandora’s box we are opening? How should panel address standard the Court should use.
Gans: THe Question remains, “What are the fundamental rights of citizens?” Look to set of issues the framers cared about. Rights of heart and home, Rights of bodily integrity. That material is out there. Ginsburg in Carhart dissent. Citizenship means something, participatory rights. Women cannot be equal citizens and citizens if they do not have reproductive rights. We are going to have a lot of work to do to grapple with these metrics?
Kurt Lash: “Opening Pandora’s Box”
I will be posting a video wherein the Panelists discuss our forthcoming article shortly.
Question: Right of education for citizenship? Goodwin Liu from Stanford.
P/I Frozen in 1868?
Barnett: Broad enough to include all liberty that may be conceived of later?
Gura: You can have originalism or slaughterhouse, but not both
Transcript of Video
Shapiro: The political spectrum are going to have concerns about what happens, um, Post-Slaughterhouse overruling. Uh, if you’re liberal, you’re going to be concerned with economic and property rights being revived. And if you’re conservative, privacy and extensions of that, abortion and everything else, and if you’re libertarian, positive rights, welfare, healthcare, etc. So, this is a potential Pandora’s Box that could be opening. How do the panelists address how/what the standard is for the Court to be reading in, uh, what are these protected rights (0:38) and I should say by way of full disclosure, I actually have an article coming out in the Georgetown Journal of Law and Public Policy trying to answer this question with my coauthor here Josh Blackman, but I wanted to know what ya’ll think.
Gans: I mean, you know, I’m not sure if the Privileges or Immunities clause revolves suddenly this 75 years, 135 years of precedents, kinda struggling the question of what is a fundamental right, suddenly just is out the window. I mean, I think that’s still gonna be sort of the question- “What are the fundamental rights of citizens?” And so the Court, I think, still has to look at that and still has to grapple with that. You know, too, I would certainly, as I probably argued only a few minutes ago, I would look sort of to what are the sets of issues that the Framer’s cared about. You know, I think, that establishes a solid basis for protecting rights by (1:38) it’s about integrity, Randy will emphasize (context and) economic rights. I mean, so I think there’s (1:45) out there, I mean, a third possibility which perhaps Justice Ginsburg has already done in her (1:52) (dissent) is to say “Citizenship, you know, means something…it means sort of a set of participatory rights” and perhaps, she’s grounding it in equal protection but her argument there is “Women can’t be equal citizens unless, uh, they can’t be citizens unless they have reproductive rights” so, you know, perhaps that’s gonna be a set of arguments but, I think, you know, we’re all gonna have a lot of work to do trying to figure out and grapple with some of these metrics.
Gans: I think the real question is whether the very two-sided-ness that you’re describing means we’re not going to see 5 votes ready to do this because each possesses a significant concern about the implications of one side or the other.
Lash: Guys, I don’t have this worry. Good luck guys. [But assume it happens.] Presumably, I, I really think for the reasons just stated the Court is likely for prudential reasons to want to take the narrow route, not the broad route. The Court limits its discussion to the Bill of Rights due to the fact, I think you’re quite right, that’s quite perceptive, the Pandora’s box that could open if you start talking about general fundamental rights that could positive as well as negative. So I think there are prudential reasons that they might take the narrow route and I also think it just has the happy circumstance of being (3:16).
Gura: I think it would be completely arbitrary for the Court to simply say it’s the Bill of Rights. I think that what the Court needs to do, what I think the Court will try to do, I hope will try to do is first define the meaning of this term and once you have that definition, then you apply it in this particular case. The particular case here is the right to arms. Future cases will decide these future rights. I’m not here to litigate every single possible unenumerated right. Senator Howard could describe them, Justice Washington could describe them…I can’t describe them either. There are some textualist historical sources I think people might want to look at. Corfield is a good place to start. The Committee Report on Reconstruction is another one where the Joint Committee on Reconstruction was outlining various problems in the South. Those might be the things that were trying to be resolved by the 14th Amendment. And of course there may be other sources people look to, but I do think that it’s not a completely out of thin air doctrine. I think it’s a textual doctrine, one that’s rooted in history, and if we look at text and history, we can discover some, I think, fairly obvious unenumerated rights and I’ll just add more quickly, even the most die-hard opponents of substantive due process will find at least one substantive due process case they happen to personally favor. We saw this in Judge (Wilkinson) for example, who wrote this article very critical of the Heller opinion, he said “Heller is just like Roe. It’s terrible, this is all made up. But of course, here are four cases under substantive due process that I like.” And he listed them: Skinner v. Oklahoma, Meyer of course was one of them, I forget the others right now, but the point is that everyone knows that there are some rights that are unenumerated and are there. The question is, “Where are they in Constitution, and once we identify the source, how do we discover them?” That last part is beyond the scope of this case.